Law Times

Page 14 April 3, 2017 • lAw Times www.lawtimesnews.com corollary relief proceeding fol- lowing valid foreign divorce or- der as, without divorce granted in Canada, support order could not properly be viewed as corol- lary relief. Trial judge erred in law when he attempted to dis- tinguish binding precedent as unique circumstances of this case did not serve to confer ju- risdiction where statute did not provide jurisdiction. Trial judge also erred in relying on forum of necessity doctrine as, if Ontario had jurisdiction, it was clear that it was appropriate forum due to real and substantial connection by virtue of husband's residence in Ontario. Husband did not dispute jurisdiction of Ontario courts under FLA to adjudi- cate equalization of net family property and wife conceded that there was no jurisdiction under FLA to award spousal support. This case where foreign court granted valid divorce but did not deal with child support was analogous to circumstances in jurisprudence holding that, where court issuing divorce had not adjudicated child support, provincial legislation was valid means of seeking child support. Use of FLA to provide remedy was consistent with statutory objective of ensuring that par- ents provide support for depen- dent children. Cheng v. Liu (2017), 2017 CarswellOnt 1348, 2017 ONCA 104, G.R. Strathy C.J.O., J.C. MacPherson J.A., and C.W. Hourigan J.A. (Ont. C.A.); var- ied (2016), 2016 CarswellOnt 11183, 2016 ONSC 3911, Price J. (Ont. S.C.J.). Family Law SUPPORT Child support Rule 25(19)(e) of Family Law Rules (Ont.) includes authority to set aside order Parties had three children. Trial was held on issues of child sup- port but father was absent due to work. Trial judge made order fixing child support arrears at $191,924 for years 2007 to 2015 and order for ongoing monthly child support in amount of $2,159 based on average income of $120,000. Father appealed. Mother brought motion to dis- miss appeal on basis that proper procedural route was motion to set aside. Motion dismissed. Appeal scheduling was ordered to de-list matter until father's motion to set aside was decided. Rule 25(19)(e) of Family Law Rules includes authority to set aside order. Definition of change was quite broad. Broad interpre- tation of r. 25(19) as including authority to set aside order was consistent with prior comments from court. Such interpretation of r. 25(19) promotes underlying philosophy, scheme and pur- pose of Family Law Rules. Gray v. Gray (2017), 2017 CarswellOnt 1349, 2017 ONCA 100, Doherty J.A., J.C. MacPher- son J.A., and P. Lauwers J.A. (Ont. C.A.). Real Property EASEMENTS Definitions Document entitled "water pipe easement" was capable of amounting to grant of easement In 1966, parties' predecessors in title agreed owner of property near lakefront (parcel B) could install pipe under lakefront property (parcel A), in order to draw water from lake. In 1968, parties' predecessors in title agreed pipe could remain, par- cel B owner could enter parcel A to make repairs. Agreement did not purport to be binding on successors or assigns and was not formally registered against title to parcel A. In 1979, new predecessors in title executed document entitled "water pipe easement," which referred to suc- cessors and assigns and was reg- istered against title. In 2012, ap- plicant owners bought parcel A. In 2014, respondent neighbours entered owners' property with- out permission to repair leak- ing pipe, then ran above-ground pipe across owners' property without permission. Owners' claimed trespass and brought application for declaration that easement, if any, was invalid. Neighbours brought counter- application for declaration of valid and subsisting easement. Application judge dismissed ap- plication and granted counter- application. Owners appealed. Appeal allowed in part. Order varied. In present case, parcel B was dominant tenement and parcel A was servient tenement. Pipeline accommodated domi- nant tenement in that it served neighbours' land and was rea- sonably necessary for better en- joyment of that land. Only right given by 1966 agreement was "to lay the Pipeline" over previ- ous owner's land. That right was limited: previous neighbours had right "during their owner- ship". As right to lay pipeline on owners' land could only be ex- ercised by previous neighbours during period of their "owner- ship", it was clear that right was given to them personally. Right could not have attached to any land that previous neighbours might have owned because it expired when their ownership ended. 1966 agreement gave pre- vious neighbours mere licence to enter onto previous owner's land and lay pipeline. There was nothing in 1968 agreement to suggest that right to leave pipe- line in position was intended to attach to land owned by previ- ous neighbours. Unlike earlier agreements, 1979 agreement was capable of amounting to grant of easement. It referred to parties by their ownership of dominant and servient tenements respec- tively; contained legal descrip- tions of both parcels of land; described pipeline as easement to serve neighbours' land; and contained clause that made 1979 agreement binding not only on parties but on their successors in title. Easement granted in 1979 agreement was valid and its scope was limited to leaving ex- isting pipeline in its present posi- tion on parcel B and neighbours may make only those repairs to pipeline that owners agreed to, in advance. Mihaylov v. 1165996 Ontar- io Inc. (2017), 2017 CarswellOnt 1653, 2017 ONCA 116, E.E. Gil- lese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.); re- versed (2016), 2016 CarswellOnt 2878, 2016 ONSC 1379, Stinson J. (Ont. S.C.J.). MORTGAGES Sale Mortgagor could pursue various types of damages in improvident sale action Injunction. First mortgagee commenced power of sale proceedings in August 2015. Deadline for redemption was specified as October 9, 2015, and no one redeemed. In No- vember 2015, first mortgagee agreed to sell property to pur- chaser. Mortgagor and second mortgagees registered cautions against title to property. Mort- gagor purported to transfer property to related company. Related company registered new mortgage against property. Mortgagor and related compa- ny brought application for, inter alia, injunction restraining first mortgagee from completing power of sale. Application dis- missed. Application judge held that subject to mortgagors' right to bring mortgage into good standing or to redeem pursu- ant to ss. 22 and 23 of Mort- gages Act, mortgagees acting in good faith and without fraud would not be restrained from proper exercise of power of sale except upon tender of amount outstanding. Application judge concluded that in present case, amount owing had not been tendered, and ability of mort- gagor and related company to tender was tenuous. Application judge found there was no fraud on part of first mortgagee, and alleged bad faith was tied to al- leged improvident sale. Appli- cation judge held that there was weak case for interlocutory in- junction based on bad faith and breach of duty of care in exercise of power of sale. It was applica- tion judge's finding that case for injunction became hope- less after considering ss. 22 and 23 of Act and whether right to redeem was still extant. Mort- gagor and related company ap- pealed. Appeal dismissed. What mortgagor was seeking, includ- ing various types of damages in relation to sale of property, could be pursued in improvi- dent sale action, which was ex- pressly left open by application judge. It was not proper role of this court to prejudge any issue in relation to that action. Linderwood Holdings Inc. v. Armanasco (2017), 2017 CarswellOnt 2277, 2017 ONCA 156, J. MacFarland J.A., K. van Rensburg J.A., and Grant Hu- scroft J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 3459, 2016 ONSC 1605, Perell J. (Ont. S.C.J.). SALE OF LAND Remedies Vendor acted reasonably in mitigating damages Purchasers entered into agree- ment of purchase and sale to buy vendor's property. Purchas- ers repudiated agreement. Ven- dor resold property at $50,000 less. Purchasers brought action against vendor. Motion judge dismissed purchasers' action and ordered purchasers to pay difference between purchase price and related expenses fol- lowing. Purchasers appealed. Appeal dismissed with costs to vendor on partial indemnity scale fixed in amount of $8,500 inclusive of disbursements and applicable taxes and costs to agent and broker in global sum of $1,000 on partial indemnity scale inclusive of disbursements and applicable taxes. There was no basis on which to interfere with motion judge's decision to dismiss entire action. Purchasers did not dispute that they wrong- fully repudiated agreement. Motion judge concluded that vendor acted reasonably in miti- gating damages, relisting shortly after repudiation through same agent, and reselling two months later. Purchasers filed no opin- ion evidence on summary judg- ment motion indicating vendor acted unreasonably or concern- ing $50,000 price differential. Cuervo-Lorens v. Carpenter (2017), 2017 CarswellOnt 1394, 2017 ONCA 109, Janet Simmons J.A., P. Lauwers J.A., and C.W. Hourigan J.A. (Ont. C.A.). Remedies DAMAGES Damages in tort Motor vehicle accident caused injuries to plaintiff that resulted in chronic condition Plaintiff was driving in stop and go traffic on highway when her vehicle was struck from behind by defendant's vehicle, and was pushed under truck immedi- ately in front of her. Defendant admitted liability for accident. Plaintiff suffered headaches, neck and upper back pain. Two years after accident plaintiff was at soccer game where she moved to avoid being hit by soccer ball, and she complained of lower back pain and aggravating in- jury to existing neck pain caused by accident. Plaintiff was work- ing as sales clerk at time of acci- dent, and she was very physically active, but she no longer worked. Plaintiff brought action seeking damages for injuries suffered in motor vehicle accident. Action allowed. As result of motor vehi- cle accident, plaintiff developed complex symptoms including chronic myofascial pain in neck and right trapezius muscles and related cervicogenic headaches, and right frozen shoulder. There appeared to be little, if any, recov- ery from physical impairments plaintiff suffered as result of mo- tor vehicle accident, essentially all treatment options had been explored without success, and any improvements in plaintiff 's condition was unlikely. What- ever contribution soccer ball incident had to existing injuries sustained as result of motor ve- hicle accident, plaintiff clearly had significant impairment and was unable to work. Motor ve- hicle accident caused injuries to plaintiff that resulted in chronic condition she now experienced, with soccer ball incident only minimally and temporarily ag- gravating her existing condition, and defendant was 100 percent liable for damages plaintiff suf- fered. In quantifying damages, 0.8 percent productivity factor was accepted in increasing over- all award; plaintiff would retire at age 64; and 5 percent manage- ment fee on award was appropri- ate. Plaintiff was awarded gen- eral damages of $140,000. Pomeroy v. Misljencevic (2016), 2016 CarswellOnt 21281, 2016 ONSC 5867, R. Scott J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law OFFENCES Assault Accused's position was clearly put to jury Accused was convicted of as- sault causing bodily harm on fellow inmate at detention cen- tre. Complainant did not iden- tify accused as participant in as- sault. Principal evidence against accused was surveillance video. Principal assailant testified that accused played no role in assault, but interceded when he was about to stomp on complain- ant's head. Critical issue for jury to decide was nature and extent of accused's participation, if any, in assault. Trial judge instructed jury on defence position that ac- cused was present but not par- ticipating. Accused appealed conviction. Appeal dismissed. Duty counsel acknowledged that if evidentiary basis existed for leaving participation as joint principal and/or aider to jury, then jury instructions contained no legal errors. Video of relevant events constituted sufficient evi- dentiary basis upon which trial judge could instruct jury that they could find accused guilty of assault causing bodily harm, ei- ther as joint principal or as aider of principal. Accused's presence was intentional, his involve- ment active. Accused's position was clearly put to jury and was roundly rejected after brief de- liberations. There was no basis upon which to interfere. R. v. O'Loughlin (2017), 2017 CarswellOnt 1078, 2017 ONCA 89, David Watt J.A., M. Tulloch J.A., and Grant Huscroft J.A. (Ont. C.A.). CASELAW

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